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EU seeks to end remaining Russian gas ties but legal options are limited

The European Union is expected to announce on Tuesday a roadmap for the phase-out of the remaining gas ties between the EU and Moscow. However, in the absence sanctions, it will be hard for gas buyers to terminate contracts by using legal options like force majeure.

A spokesperson for the Commission confirmed Monday that EU Energy Commissioner Dan Jorgensen will present the roadmap on Tuesday at Strasbourg. The U.S. has been pushing Russia to reach a peace agreement with Ukraine. The deal, if reached, could reopen doors for Russian energy as well as ease sanctions.

Around 19% (or more) of Europe's natural gas is still imported from Russia via the TurkStream pipe and LNG shipments. The European Union's non-binding target is to stop Russian fossil fuel imports before 2027. This goal will be achieved by the EU roadmap.

A senior EU official said that the Commission is looking at legal options which would allow European companies to break their Russian Gas contracts and invoke force majeure without being penalized, as well measures to prevent companies from entering new contracts with Russian gas.

Analysts and lawyers said that it is unlikely that force majeure will work given that the EU has been committing to stop Russian gas imports by 2022 after Russia invaded Ukraine.

Agnieszka Ason is an independent energy lawyer who specializes in LNG contracts. She said that a force majeure declaration must be made when an event occurs which is unforeseeable and beyond the control of companies. This prevents them from fulfilling their contract. The remaining Russian supplies are working fine after three years of conflict.

"Any deliberate actions that the EU would take already weakens force majeure. Ason, a senior researcher at the Oxford Institute for Energy Studies and a force majeure concept expert, said that the opposite is true.

Experts in the legal field say that sanctions on Russian gas imports are the best way to phase out Russian Gas.

This would require the unanimous approval of all 27 EU member states, but Slovakia, Hungary, and Russia have maintained close business and political ties, with Russia vowing to block energy sanctions.

Since the beginning of the Ukraine war, Gazprom has filed legal actions and counterclaims against European companies for breached contracts and unpaid payments. Calculations based on court documents estimate that these disputes are worth approximately 18.5 billion euro ($21 billion).

Gazprom contracts include a "take or pay" clause that requires buyers who refuse gas deliveries to continue paying for up to 95% the contracted volume.

David Haverbeke of the law firm Fieldfisher said that the EU should help companies to argue that they have changed circumstances since 2022. For example, the risk associated with purchasing Russian gas as opposed to other supplies should be a reason for them renegotiating and possibly terminating their Russian contracts.

He said: "I would try and rely on EU regulations passed since 2023, and invoke hardship on the basis of the changes in regulatory framework."

Haverbeke suggested that another option would be to force companies to purchase Russian LNG in the future via a joint EU buying scheme, and set a maximum volume quota.

(source: Reuters)